$250,000 Infringement Lawsuit: Miriam Luber
Miriam Luber ---- Miriam Luber (Fifth Avenue Hotel), called as witness in behalf of defendant Paramount Publix Corporation. Mrs. Luber, what is your business or occupation? Miriam Luber: "I'm a dancer." Professional dancer? Miriam Luber: "Yes, sir." Do you recall a professional engagement which you had in Atlantic City in 1928? Miriam Luber: "Yes." At what place did you appear in Atlantic City that year? Miriam Luber: "At the Beux Arts, night club." What time of the year was that? Miriam Luber: "I opened there May 31st, the day after Decoration Day." Do you recall any of the acts that were on the same bill with you at the Beux Arts in 1928? Miriam Luber: "Yes." Will you state who they were? Miriam Luber: "There was a dancing team by the name of Pepino & Carthe, and a sister team by the name of Betty and the Gladys Travers, and Mario Villani, and a little colored girl by the name of Baby Esther." I show you this photograph and ask you if that is the little girl that you call Baby Esther who was on the bill with you at the Beux Arts? Miriam Luber: "Yes." Did Baby Esther start on the program at the same time that you did, or did she come later? Miriam Luber: "She came later." How long after you started to work at the Beux Arts?" Miriam Luber: "She came there about the early of middle part of June." 1928? Miriam Luber: "Yes, sir." How long did she work there? Miriam Luber: "I don't know that, because I left there around the early or middle part of July." Was she still on the program at the Beux Arts in Atlantic City up to the time that you left? Miriam Luber: "Yes." Did you see Baby Esther perform at this night club? Miriam Luber: "Yes." How frequently did she perform there? Miriam Luber: "She performed every night, two performances every night." Did you witness the performances? Miriam Luber: "Yes." Who was there with her? Miriam Luber: "Her manager." What was his name? Miriam Luber: "A man by the name of Bolton." Do you know his first name? Miriam Luber: "Lou." Will you describe the manner of Baby Esther's singing at the Beux Arts as you witnessed her give it at a performance? Miriam Luber: "She sang hot songs in a baby-ish voice, breaking it at intervals with hot breaks, such as "Skee and Scat," "Bup-Bup," "Ud-Up-Deo-Do," and "Boop-Boop-a-Doop" and "Poo-Poo-a-Doop," and others. Mrs. Luber, you mentioned before about seven or eight different expressions that this girl used in interpolations, is that correct? Miriam Luber: "I would not say seven or eight." You mentioned about seven or eight. It is quite likely that she had many more expressions than that, isn't that so?" Miriam Luber: "Yes." I mean, that she emitted sounds such as the ones you gave? Miriam Luber: "Yes." Miriam couldn't remember what songs Esther Jones performed, but knew that they were popular songs. During the questioning Luber was continually asked if Esther Jones had sang "Do Something" on the stage. Did you ever hear a song "That's My Weakness Now"? Miriam Luber: "Yes." Did the little girl Esther Jones sing that song? Miriam Luber: "No, she did not." Did she sing "I Wanna Be Loved By You"? Miriam Luber: "No, she did not." Did she sing "Do Something"? Miriam Luber: "I don't know." When you say that you don't know, she may have, or she may not have? Miriam Luber: "She may or may not have." She was quite the youngster at the time? Miriam Luber: "Yes." And you say that she sang in a baby voice, that is was quite a baby voice? Miriam Luber: "Well, I would not call her a baby." About how old did she look to you?" Miriam Luber: "About eight or nine years old at the time." You would not call her a baby? Miriam Luber: "Not a real baby." Then I asked you whether she sang "That's My Weakness Now," and you remember definitely she did not sing that? Miriam Luber: "She did not sing that." Do you remember now whether she sang "Wah-De-Daw"? Miriam Luber: "I don't know about that either." Did you sing that song? Miriam Luber: "No, I don't sing, or I did not at that time." Miriam is then asked a barrage of questions relating to songs that Esther Jones may or not have sang. Miriam responds by saying she does not know and cannot remember. All she knew is that Esther Jones sang popular songs of the late 1920s. You remember that the little girl danced? Miriam Luber: "Yes." You remember her style of singing? Miriam Luber: "Yes." When you say that you don't know, do you mean she positively did not sing it, or she may have or may not have sung it? Miriam Luber: "She did not sing that." You remember that distinctly? Miriam Luber: "Yes." Do you think if you were given some more time to think, for a moment or two moments, you might possibly be able to coordinate in your memory the songs that this girl sang? Miriam Luber: "No, I could not." Have you been trying to remember these songs for the past two years, have you been trying to recall the songs this girl sang? Miriam Luber: "Yes." And you cannot positively remember one? Miriam Luber: "I could not." ---- Category:$250,000 Infringement Lawsuit Category:Kane v. Fleischer et al., 248 A.D. 554 (New York Supreme Court, Appellate Division New York State Library, Albany. 130.)